State v. Lewis

[Cite as State v. Lewis, 2017-Ohio-7480.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104765
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JAMALL LEWIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-602693-A
BEFORE: Blackmon, P.J., Laster Mays, J., and Jones, J.
RELEASED AND JOURNALIZED: September 7, 2017
ATTORNEY FOR APPELLANT
Russell S. Bensing
600 IMG Building
1360 East Ninth Street
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Daniel A. Cleary
Brian D. Kraft
Andrew T. Gatti
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, P.J.:
{¶1} Appellant Jamall Lewis (“Lewis”) appeals his convictions for aggravated
murder, murder, felonious assault, attempted murder, with firearm, repeat violent
offender and gang specifications, and having a weapon while under disability. Lewis
assigns the following errors for our review:
I. The trial court erred in entering a conviction which was against the
manifest weight of the evidence.
II. The trial court erred in the admission of prior statements of the state’s
key witness.
III. The trial court erred in determining that the state’s rationale for using
a peremptory challenge on an African-American member of the jury panel
was race-neutral.
{¶2} Having reviewed the record and the pertinent law, we affirm the decision of
the trial court.
{¶3} In January 2016, Lewis, Ramel Lee (“Lee”), and Ky’Tric Shropshire
(“Shropshire”) were indicted in a multicount indictment in connection with the April 15,
2013 shooting that resulted in the death of Regina Neal (“Neal”) and injuries to Charles
Elder (“Elder”). As is relevant herein, Lewis was charged with aggravated murder,
murder, attempted murder, three counts of felonious assault, all containing various
one-year and three-year firearm specifications, criminal gang activity specifications,
repeat violent offender specifications and a notice of a prior conviction, as well as
discharging a firearm near prohibited premises, and having a weapon while under
disability. Lewis pled not guilty and the matter proceeded to a jury trial on June 1,
2016.1
{¶4} Elder testified that a number of his friends are members of ATM Jack Boyz
gang, but that he is not in a gang. During the evening of April 15, 2013, while Elder and
Neal were walking from Neal’s home on East 134th Street near Caine Avenue, to a store
near Beachwood Avenue, all within an area considered ATM Jack Boyz territory, they
were suddenly fired upon. Elder was struck in the leg. Neal was shot in the head and
abdomen, and died from her injuries.
{¶5} Elder determined that the shots came from behind them. It was “kind of
dark,” but when he looked back, he saw a man four or five houses away, wearing a “red
hoody that was tied tight, you could only see the nose and the mouth of the person.” As
Elder’s friends, “Diaz” and Jermaine Cottrell, a.k.a. “Mane,” arrived in response to the
gunfire, Elder observed the man in the red hooded sweatshirt driving by in a small white
car. Elder told police that the assailant was short, stocky, with a “big nose and big
lips.”
{¶6} Elder testified that he “felt like [he] did recognize him” and he believed the
assailant was Lewis, a J-Park gang member, who had a prior altercation with Elder’s
Lewis was tried with Shropshire. Shropshire was convicted of aggravated murder, murder,
1
felonious assault, and having a weapon while under disability. He was sentenced to life
imprisonment with parole eligibility after 25 years. His direct appeal is pending in State v.
Shropshire, 8th Dist. Cuyahoga No. 104775. Lee was tried separately and was sentenced to nine
years on all of the specifications, to a total of fifteen years to life imprisonment on the remaining
charges. This court affirmed his conviction. See State v. Lee, 8th Dist. Cuyahoga No. 104682,
2017-Ohio-1449.
brother. Elder conceded that he may have not immediately given Lewis’s name to
police, but he testified that in the days or weeks that followed, he provided police with the
name of Jamall Lewis as the person he “thought” was a suspect in the shooting.
Additionally, Elder listed Lewis’s name as a possible suspect on a Victim of Crime
Compensation application. Shortly before trial, Elder identified Lewis in a photo array,
then again in court.
{¶7} Cleveland police subsequently learned the name of the owner of the vehicle
that Elder observed immediately after the shooting, but they excluded him from
involvement in the shooting. However, Cleveland Police Detective Tim Entenok (“Det.
Entenok”) testified that early the next morning, Elder informed police that Jamall Lewis
was a suspect. (Tr. 111.) The police also recovered 16 fired bullet shell casings from the
area, including .40 caliber, .45 caliber and 9 mm caliber shells, linked to three specific
handguns. Using the National Integrated Ballistic Information Network (“NIBIN”), the
police linked the .40 shell casings to a Taurus pistol that was seized during an arrest in
Bedford Heights. However, the caliber of the pellet recovered from Neal’s body could
not be determined.
{¶8} By March 2015, S.L. was being detained in the juvenile detention center,
pending mandatory bindover for aggravated robbery with a firearm specification, and he
decided to cooperate with law enforcement. Cleveland police detectives interviewed
him twice before obtaining a proffer statement on March 6, 2015. S.L. stated that at the
time of the proffer, detectives did not know that he would address this matter, and that he,
and not the police, initiated discussion of this shooting. Before the proffer, the state had
not offered him any plea agreement.
{¶9} S.L. admitted that prior to his proffer, he was facing mandatory bindover
and indictment for aggravated robbery with firearm and gang activity specifications, as
well as a charge of having a weapon while under disability. As a result of his proffer,
the state agreed that S.L. would serve ten months in a juvenile facility for his offenses, so
“long as he came in and testified truthfully” against Lee, Shropshire, and Lewis.
{¶10} S.L. testified that he is a member of the J-Park gang, and that ATM Jack
Boyz gang members are their enemies. On the afternoon of April 15, 2013, while S.L.
was walking past the Lee Harvard Plaza, ATM Jack Boyz gang member “Mane” shot at
him. S.L. met with other J-Park members Lewis, Shropshire, and Lee at Shropshire’s
house, and told them about the shooting so that they “would fight or shoot at them” in
retaliation. After nightfall, the group assembled in a silver SUV owned by a friend of
Shropshire, then Lee drove them to East 134th Street between Caine Avenue and
Beachwood Avenue, looking for Mane. Lewis was armed with a .40 caliber
semiautomatic weapon, Shropshire had a .45 caliber semiautomatic weapon, and Lee and
S.L. were unarmed. S.L. also testified that Lee was wearing a red hooded sweatshirt,
Lewis was wearing a gray hooded sweatshirt, and Shropshire was wearing a blue jacket.
{¶11} According to S.L., as they circled the block, they noticed a group of
people standing outside. They parked a few streets over so they “could get ready to do
something to the ATM Jack Boys.” Lee parked about a block away and the J-Park
members quickly discussed that Lewis and Shropshire would “[do the] shooting” and Lee
and S.L. would remain in the car. Lewis and Shropshire then left the vehicle, each with
a weapon. A few minutes later, S.L. heard ten to twenty gunshots, then Lewis and
Shropshire ran back to the car with their weapons in their hands. Lee drove the group
back to Shropshire’s house. The next day, S.L. learned from social media that a man
and woman were hit during the shooting. After that, Lewis and Shropshire got rid of the
weapons. S.L. admitted that he later obtained the .45 firearm that was “going around”
the neighborhood.
{¶12} Cleveland Police Det. Colin Ginley (“Det. Ginley”) testified that he
interviewed S.L. twice before the proffer. According to Det. Ginley, the police do not
“guarantee anything but we’re going to give this information to the detectives and * * *
see if it’s truthful and see if it can be corroborated [then prosecutors will] consider it but
nothing is guaranteed.” If truthful testimony is then provided, the information provided
in the proffer cannot be used against the maker of the statement.
{¶13} Det. Ginley testified regarding the substance of S.L.’s proffer, including the
earlier shooting and the planned retaliatory shooting. Det. Ginley also testified that he
confirmed that there was a report of gunshots earlier in the day in the area of Lee and
Harvard, and that S.L. correctly identified the caliber of the weapons used during the
shooting later that night.
{¶14} After the presentation of the state’s case, the trial court denied Lewis’s
motion for acquittal. Lewis was subsequently acquitted of the charge of discharging a
firearm near prohibited premises, but was convicted of all remaining charges and
specifications. He was sentenced to 44 years-to-life imprisonment, with parole
eligibility after 30 years.
Weight of the Evidence Supporting a Conviction
{¶15} In the first assigned error, Lewis argues that his conviction is against the
manifest weight of the evidence because Elder and S.L. are not credible and there were
discrepancies in their accounts of the shooting.
{¶16} In examining a challenge to the manifest weight of the evidence
supporting a conviction, this court weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered. State v. Thompkins, 78
Ohio St. 3d 380, 387, 678 N.E.2d 541 (1997). The discretionary power to grant a new
trial should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction. Id.
{¶17} In conducting its review, the court remains mindful that the credibility of
the witnesses and the weight to be given the evidence are primarily for the trier of fact to
assess. State v. Bradley, 8th Dist. Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing
State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967), paragraph one of the
syllabus. Moreover, discrepancies in a witness’ testimony or between his or her
testimony and that of others does not necessarily preclude the jury from believing that
testimony. State v. Rudd, 8th Dist. Cuyahoga No. 102754, 2016-Ohio-106, ¶ 37. The
Rudd court explained:
[A] conviction is not against the manifest weight of the evidence solely
because the jury heard inconsistent or contradictory testimony. State v.
Wade, 8th Dist. Cuyahoga No. 90029, 2008-Ohio-4574, ¶ 38, citing State v.
Asberry, 10th Dist. Franklin No. 04AP-1113, 2005-Ohio-4547, ¶ 11; see
also State v. Mann, 10th Dist. Franklin No. 10AP-1131, 2011-Ohio-5286, ¶
37 (“‘While the jury may take note of the inconsistencies and resolve or
discount them accordingly, * * * such inconsistencies do not render
defendant’s conviction against the manifest weight or sufficiency of the
evidence.”’), quoting State v. Nivens, 10th Dist. Franklin No.
95APA09-1236, 1996 Ohio App. LEXIS 2245, *7 (May 28, 1996). The
decision whether, and to what extent, to believe the testimony of a
particular witness is “within the peculiar competence of the factfinder, who
has seen and heard the witness.” State v. Johnson, 8th Dist. Cuyahoga No.
99822, 2014-Ohio-494, ¶ 54.
Id. at ¶ 72.
{¶18} In this matter, Lewis insists that Elder equivocated on the identity of the
shooter and did not immediately identify him as a perpetrator. However, Elder testified
that in the days or weeks that followed the shooting, he “gave [police] a name” and
description. Additionally, about a month after the shooting, he listed Lewis’s name on a
Victim of Crime Compensation form as the person he “thought” was the shooter. Later,
in a photo array and at trial, he identified Lewis as the assailant. Reviewing the record
as a whole, the jury reasonably could have concluded that Elder’s identification of Lewis
was consistent, credible, and reliable.
{¶19} Additionally, S.L. testified regarding the incident leading up to the
shooting, and the planning of a retaliatory shooting. According to S.L.’s testimony, the
group drove to ATM Jack Boyz territory and observed individuals on East 134th Street.
The group parked nearby and planned that Lewis and Shropshire would shoot the
individuals on East 134th Street, and S.L. and Lee would remain in the SUV. S.L. also
testified that he observed Lewis and Shropshire leave the vehicle with weapons. A few
minutes later, he heard gunshots, and the men then ran back to the vehicle. The next
day, he learned the identities of the victims. S.L. was then extensively cross-examined
regarding the leniency of his plea agreement, his subsequent possession of the .45 caliber
weapon used in the shooting, the clothing worn by the J-Park members at the time of the
shooting, and the type of vehicle used in the shooting. Additionally, the jury was also
cautioned, under R.C. 2923.03(D) that because S.L. was an accomplice to the shooting,
they were required to view his testimony with “grave suspicion.” However, he remained
consistent that the shooting was the result of the earlier altercation with Mane and that
Lewis and Shropshire were the shooters. His claims regarding the earlier shooting and
the caliber of the weapons were corroborated. Therefore, after reviewing the record as a
whole, we conclude that although there were discrepancies in portions of S.L.’s
testimony, the jury reasonably could have concluded that this identification was credible
and reliable. In weighing the evidence and all reasonable inferences, and considering
the credibility of witnesses and resolving conflicts in the evidence, we cannot say that the
jury clearly lost its way and created a manifest miscarriage of justice in convicting Lewis
in this matter.
{¶20} Moreover, although Elder’s testimony and S.L.’s testimony differed on
several points, including the color of the shooter’s clothing and the color and model of the
vehicle, following our own review of the record, we cannot say that the jurors acted
unreasonably in finding their testimony regarding Lewis’s involvement to be credible.
Rudd at ¶ 73.
{¶21} From all of the foregoing, we cannot say that the convictions are against
the manifest weight of the evidence. This assigned error is without merit.
Witness’s Prior Statement
{¶22} In the second assigned error, Lewis asserts that the trial court erred in
concluding that Det. Ginley’s testimony regarding the content of S.L.’s proffer of
evidence was admissible as a prior consistent statement. Lewis argues that under
Evid.R. 801(D)(1)(b), such statement must be made before an alleged motive to fabricate,
whereas in this instance, the statement was made after S.L. was charged with delinquency
in connection with an aggravated robbery and was motivated to avoid a bindover and
imprisonment.
{¶23} Evid.R. 801(D)(1)(b) provides:
(D) Statements which are not hearsay. A statement is not hearsay if:
(1) Prior statement by witness. The declarant testifies at the trial or
hearing and is subject to cross-examination concerning the statement, and
the statement is * * *
(b) consistent with his testimony and is offered to rebut an express or
implied charge against him of recent fabrication or improper influence of
motive[.]
{¶24} Under this rule, a declarant’s prior consistent statement is not hearsay if
(1) the declarant testifies at trial and is subject to cross-examination, (2) the statement is
consistent with her prior testimony, and (3) it is offered to rebut an express or implied
charge of recent fabrication or improper motive. See State v. Nichols, 85 Ohio App. 3d
65, 70, 619 N.E.2d 80 (4th Dist.1993); State v. Smith, 34 Ohio App. 3d 180, 191, 517
N.E.2d 933 (5th Dist.1986); State v. Pritchard, 8th Dist. Cuyahoga No. 78497, 2001 Ohio
App. LEXIS 3400 (Aug. 2, 2001).
{¶25} In State v. Lang, 129 Ohio St. 3d 512, 2011-Ohio-4215, 954 N.E.2d 596,
the Ohio Supreme Court considered a similar matter. In that case, co-defendant Walker
entered into a plea agreement that allowed him to plead guilty to lesser charges in
exchange for his truthful testimony against Lang. In Lang’s opening statement, the
defense argued that the state would present “the statements of a person * * * with an
interest in the case,” and “implied that Walker had a motive to lie because of the
favorable terms of his pretrial agreement.” Id. at ¶ 108-109. The Ohio Supreme Court
concluded that these statements constituted “an allegation of recent fabrication that
allowed the state to introduce Walker’s prior consistent statements to rehabilitate his
testimony.” Id. at ¶ 110. The Lang court explained:
Defense counsel’s opening statement implied that Walker had had a motive
to lie because of the favorable terms of his pretrial agreement. This was
an allegation of recent fabrication or improper influence that allowed the
state to introduce Walker’s prior consistent statements to rehabilitate his
testimony. See State v. Wolff, 7th Dist. No. 07 MA 166, 2009-Ohio-2897,
¶ 78 (allegations of recent fabrication during opening statement provided
grounds for admitting prior consistent statement).
Furthermore, Walker had made the statements at issue before he entered
into his pretrial agreement. See State v. Howe (Sept. 30, 1994), 2d Dist.
App. No. 13969, 1994 Ohio App. LEXIS 4352, 1994 WL 527612, *9 (prior
consistent statement made before an offer of leniency admissible following
a defense allegation that the offer established a motive to falsify); State v.
Mullins (1986), 34 Ohio App. 3d 192, 197, 517 N.E.2d 945. Thus, no
error, plain or otherwise, occurred when the trial court admitted Walker’s
prior consistent statements. (Emphasis sic.)
Id. at ¶ 110-111.
{¶26} In this case, defendant’s trial attorney cross-examined S.L. as follows:
Q. So you’ve got all these problems, all this trouble developing for you at
that point, and you make a decision, right?
A. Yes.
Q. With the assistance of your attorney, you reach out to the prosecutor’s
office and you offer to give them information, correct?
A. Yes.
Q. There’s a requirement that goes with this offer of information that
you’re going to have to do exactly what it is you’re doing right now,
correct?
A. Yes.
Q. And not only are you going to sit in that seat and testify, but you’re
going to testify truthfully, correct?
A. Yes.
Q. And consistently with whatever it is you tell them in that statement you
gave on March 6th, 2015, correct?
A. Yes.
Q. And the deal that you cut is absolutely dependant upon them being
satisfied that you lived up to your end of the bargain, correct?
A. Yes.
***
Q. [Y]ou’re pretty motivated to give this group of people right here
exactly what it is they want in order to make sure that you maintain that deal
because you’re still hanging out there a little bit, correct?
A. Right.
{¶27} The trial court subsequently ruled that the proffer statement was
admissible as a prior consistent statement. Applying Lang, we likewise find no abuse of
discretion because it involves similar allegations of recent fabrication. Moreover, the
record demonstrates that S.L. brought up this matter to police during the pendency of
another investigation. S.L. then provided information about this matter before he
entered into his pretrial agreement, so it was made before an offer of leniency.
{¶28} Additionally, we note that Det. Ginley’s testimony contains repeated
references of what S.L. “said,” “talked about,” “brought up,” and “spoke” about, so he
clearly indicated that he was repeating S.L.’s statements. Therefore, we find this
testimony to be cumulative to S.L.’s own trial testimony, so it is doubtful that it deprived
Lewis of a fair trial. Accord State v. Miller, 8th Dist. Cuyahoga No. 100461,
2014-Ohio-3907, ¶ 79.
{¶29} This assigned error is without merit.
Batson Claim
{¶30} In the third assigned error, Lewis asserts that the trial court erred in
accepting the state’s rationale for using a peremptory challenge to dismiss an
African-American jury panel member.
{¶31} In Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986),
the United States Supreme Court held that purposeful discrimination in the use of
peremptory challenges to exclude members of a minority group violates the Equal
Protection Clause of the United States Constitution. Id. at 82. The Batson court set
forth a three-step procedure for determining whether a peremptory strike violates equal
protection. First, the opponent of the peremptory strike must make a prima facie case of
racial discrimination, demonstrating that members of a recognized racial group were
peremptorily challenged, and the facts and circumstances raise an inference that the
prosecutor used the peremptory challenge to exclude the jurors because of their race. Id.
at 96. Second, if the trial court finds that the opponent has set forth a prima facie case,
then the proponent of the strike must come forward with a racially neutral explanation for
the strike. Id. at 97-98. Finally, if the proponent puts forth a racially neutral
explanation, the trial court must decide, based on all the circumstances, whether the
opponent has proven purposeful racial discrimination. Id. This requires the court to
“examine the prosecutor’s challenges in context to ensure that the reason is not merely
pretextual.” State v. Frazier, 115 Ohio St. 3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶
65. However, the ultimate burden of persuasion regarding racial motivation rests with,
and never shifts from, the opponent of the strike. Rice v. Collins, 546 U.S. 333, 338,
126 S. Ct. 969, 163 L. Ed. 2d 824 (2006).
{¶32} A trial court’s finding of no discriminatory intent will not be reversed on
appeal unless it was clearly erroneous. State v. Hernandez, 63 Ohio St. 3d 577, 583, 589
N.E.2d 1310 (1992), following Hernandez v. New York, 500 U.S. 352, 111 S. Ct. 1859,
114 L. Ed. 2d 395 (1991). This deferential standard arises from the fact that the third step
of the Batson inquiry turns largely on the trial court’s evaluation of credibility. See State
v. Herring, 94 Ohio St. 3d 246, 257, 2002-Ohio-796, 762 N.E.2d 940, citing Batson at 98.
{¶33} In this matter, the defense made a Batson challenge after the state used a
peremptory strike to strike a young African-American male who worked in retail. The
state then explained that “he is close in age to the age of these defendants * * * and he’s
from Cleveland Heights, which from past unfavorable jury verdicts” led him to conclude
that the juror would “tend to side more with the defense.” The defense countered that a
young Caucasian female college graduate was not stricken and that “Cleveland Heights is
a completely fair and neutral territory.” The court found the state’s explanation to be
sufficient, stating:
[I]t’s not that there has to be a pattern that has been expressed. It could be
made on the first. I believe he’s the first African-American the State is
excusing here and they state it’s because he’s of similar age of the
defendant, not based solely on race. There’s plenty of other
African-Americans on this jury. And the record will reflect that the first
two causal challenges were made against African-American jurors, * * *
[which] were initiated by the defense in this case.
I believe the State satisfied their burden and I’ll overrule the Batson
challenge.
{¶34} In evaluating the Batson challenge, we begin by noting that in State v.
Pennington, 8th Dist. Cuyahoga No. 78878, 2001 Ohio App. LEXIS 4888 (Nov. 1, 2001),
this court upheld a peremptory strike used to excuse a male African-American juror
where the stated reason was that the juror was the same age as the defendant.
{¶35} Turning to the issue of the juror’s city of residence, we note that in Brown
v. Grounds, N.D. Cal. No. 12-CV-01714, 2014 LEXIS 114795 (Aug. 18, 2014), the
district court considered and reviewed a similar Batson challenge following a
prosecutor’s peremptory challenge to prospective juror who lived in Berkeley, California,
which, according to the prosecutor, is “probably the most liberal city in the United
States.” The juror was also politically active. The trial court found no Batson
violation. In addressing the juror’s residence in Berkeley, the trial court observed that
even if the peremptory strike was based solely on her Berkeley residence, “that would be
a race-neutral reason.” Id. The district court, reiterating the analysis applied in the
state appellate court, found no Batson violation because the defendants did not “contend
that residence in Berkeley, and involvement in the politics of that city, are a proxy for
race, and nothing we are aware of would support such an assumption.” Id., applying
People v. Brown, 1st Dist., Division Four Case No. A118569, 2011 Cal. App. Unpub.
LEXIS 2392 (Mar. 30, 2011).
{¶36} In United States v. Bishop, 959 F.2d 820 (9th Cir.1992), the court
considered a prosecutor’s peremptory challenge of an African-American welfare
eligibility worker living in Compton, California. The prosecutor explained that he
believed that “an eligibility worker living in Compton is likely to take the side of those
who are having a tough time, aren’t upper middle class, and probably believes that police
in Compton in South Central L.A. pick on black people [and see] police activity as more
intrusive[.]” Id. at 822. The court concluded that a Batson violation had occurred, but
it also noted as follows:
This is not to say that residence never can constitute a legitimate reason for
excluding a juror, even after a prima facie showing of intentional
discrimination has been made. On the contrary: What matters is not
whether but how residence is used.
Id. at 826. Accord People v. Stevenson, 1st Dist., Division Two Case No. A121825,
2010 Cal. App. Unpub. LEXIS 1499 (Mar. 2, 2010) (peremptory strike upheld where
dismissal of early education teacher based on her “sociology type background, common
liberal type background” and residence in San Francisco and Ventura County, which the
prosecutor believed are “liberal” areas).
{¶37} Applying the foregoing, we hold that the prosecuting attorney could put
forth residence as a racially neutral basis for the peremptory challenge, so long as it is not
actually a pretext or surrogate for racial discrimination. In this matter, there is no basis
in the record upon which to conclude that that prohibition was violated herein.
Moreover, in light of that racially neutral explanation, and the absence of purposeful
racial discrimination, the trial court’s determination that there was no discriminatory
intent is not clearly erroneous.
{¶38} Finally, although Lewis also challenges the trial court’s statement that
there are “plenty of African-Americans on the panel,” the record indicates that the court
did not impermissibly require a pattern before finding discriminatory motive, but was
instead noting that the prosecutor had not used any peremptory challenges to strike other
African-Americans, a factor that a trial judge may take as an indication of
nondiscriminatory motive. See, e.g., United States v. Lane, 866 F.2d 103, 106 (4th
Cir.1989) (“the fact that two black jurors were seated on Lane’s jury and * * * prosecutor
exercised only one of his three peremptory challenges tends to negate a motive to
discriminate”).
{¶39} Following a thorough review of the record, we cannot say that the trial
court’s decision finding lack of discriminatory intent was clearly erroneous. The
assigned error is without merit.
{¶40} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
ANITA LASTER MAYS, J., and
LARRY A. JONES, SR., J., CONCUR